Schwam v. Reece

• Citation: 210 S.W.2d 903,213 Ark. 431
• Decision Date: 10 May 1948
• Docket Number: 4-8510
• Parties: Schwam v. Reece
• Court: Supreme Court of Arkansas

210 S.W.2d 903

213 Ark. 431

Schwam v. Reece

No. 4-8510

Supreme Court of Arkansas

May 10, 1948

Appeal from Crittenden Circuit Court; Zal B. Harrison, Judge.

Affirmed.

Atlee Harris, Hale & Fogleman and Wils Davis, for appellant.

J H. Spears, Rieves & Smith and James W. Wrape, for appellee.

OPINION

Minor W. Millwee, Justice.

Appellant, F. A. Schwam, has appealed from three separate judgments rendered against him in circuit court growing out of a collision between an automobile driven by him and a bus being driven by appellee, W. F. Reece, for appellee, W. Harry Johnson, doing business as Great Southern Coaches. The collision occurred on U.S. Highway 70, a four-lane paved highway, at a point near the eastern limits of the City of West Memphis, Arkansas, on November 18, 1946.

On January 2, 1947, appellee, W. F. Reece, filed suit against appellant. The complaint alleged that Reece was driving a bus east on one of his regular trips between West Memphis, Arkansas, and Memphis, Tennessee, for appellee, Johnson, about 4:10 p. m., when appellant, who was driving west in his automobile, negligently and recklessly left his right-hand side of the road and drove across the center line of the highway into the bus driven by Reece; that the impact of the collision rendered the bus uncontrollable and resulted in serious personal injuries to Reece for which he prayed damages in the sum of $ 25,000.

On March 28, 1947, appellee, People's Mercantile & Implement Company, filed a separate action in circuit court against appellant, Schwam, and appellee, Johnson, alleging that the collision of the automobile and bus was caused by the joint and several negligence of the drivers of both vehicles; that as a result of the collision, the bus ran off the highway and upon the property of the implement company adjacent to the south side of the highway and ran into and damaged two of the company's tractors in the sum of $ 2,553.95.

On April 7, 1947, appellant filed an answer and cross complaint in the action brought by Reece. Johnson was joined as a cross-defendant in the cross complaint in which appellant alleged that he suffered personal injuries and damages to his automobile in the sum of $ 18,250 as a result of the negligent operation of the bus by Reece while acting within the scope of his employment as a driver for Johnson.

On April 22, 1947, Reece answered the cross complaint of appellant. On the same date Johnson also answered and filed a cross complaint against appellant praying for damages to the bus. Johnson and appellant filed separate answers to the complaint filed against them in the separate suit of People's Mercantile & Implement Company in which each denied the allegations of the complaint and alleged that the collision and resulting damages were caused solely by the negligence of the other. On May 7, 1947, appellant answered the cross complaint of Johnson in the action brought by Reece.

The cases were consolidated for trial before a jury resulting in separate verdicts and judgments against appellant, in favor of Reece for $ 2,500; in favor of Johnson for $ 2,000; and in favor of People's Mercantile & Implement Company for $ 2,553.95.

The first contention of appellant for reversal of the judgments is that the evidence is legally insufficient to support the verdicts. The evidence on behalf of appellee is to the effect that he was driving the bus east out of West Memphis and made a stop a short distance west of the point of collision and then proceeded eastward driving in the south lane of the highway at about 25 to 30 miles per hour, when he approached a slight hump in the highway. Reece testified: "As I said, I slowed down a little bit to cross the hump in the highway. I had it in high gear then and was beginning to pick up a little speed. I guess I had went around ten or fifteen feet when I happened to notice a car coming down meeting me, sixty or seventy feet away, on the north side of the highway coming west. When he got about fifty feet in front of me he just darted in front of me, and when I seen he was going to hit me I pulled the bus to the right to try to keep him from hitting me, and he hit my left front fender a glancing blow, and the side of his car come on down and hit the side of it. When it did it knocked out my brakes, opened up the accelerator, and also jammed the steering system so that I couldn't get it straightened up in the road. And after it got started, naturally me being confused and all that I couldn't think to turn the key off, and the next thing I knew I was hitting the two tractors and the telephone pole."

Reece also testified that the bus picked up speed after the collision until it struck the two tractors parked in front of the implement company 25 feet from the south side of the highway and then struck the pole where it came to a stop. The distance from the point of the collision to the tractors was estimated at 168 to 180 feet, and from the tractors to the electric power pole at 79 to 90 feet. Two witnesses who were passengers on the bus corroborated the testimony of Reece and stated that appellant, without giving a signal, crossed the center line of the road as though he intended to turn into a roadside restaurant located south of the highway.

J. R. Hayes, a resident of Little Rock, Arkansas, testified that he was driving east about a block behind the bus at the time of the collision and observed appellant suddenly turn his automobile across the center line of the highway into the bus on the south side of the road.

Witnesses for appellees and appellant testified that dirt, broken glass, and other debris were found on the south side of the highway after the collision, indicating the point of impact to be in the first lane south of the center line. The speed of the bus was estimated by various witnesses at 25 to 60 miles per hour and the speed of the automobile at 25 to 50 miles per hour.

Appellant is a grocery merchant at West Memphis and testified that he was returning from a trip to Memphis, Tennessee, with a load of groceries in his automobile at the time of the accident. He stated that he was driving in the south or center lane on the north side of the highway when he saw the "flash of a vehicle" come across the center line and strike his automobile. He did not see the bus until it was about four or five feet from him and was rendered unconscious and injured by the collision. He had not eaten lunch on the day of the accident, and stopped about two or three miles east of the point of collision and took a "couple of swallows" of wine from a pint bottle purchased in Memphis. About 2/3 of a bottle of peach or apricot "whiskey" was found in appellant's car after the collision. The bottle was between a pint and quart in size.

Appellant criticizes the testimony of certain witnesses as being unworthy of belief. He also states that the testimony of Reece that the bus was being operated in the extreme south lane of the highway is at variance with the physical fact that glass and debris were found in the first lane south of the center line of the road. It is also argued that, if the witness, Hayes, was driving 100 yards behind the bus, it would have been impossible for him to have seen the automobile of appellant cross the road in front of the bus, as he testified. It is true that the evidence is conflicting, but the jury, being the sole judges of the credibility of the witnesses, had a right to believe or disbelieve all, or any part, of the testimony of the various witnesses and to resolve any conflicts or inconsistencies in the evidence. The fact that glass and other debris were found in the first lane south of the center line of the highway would support the theory of appellees that appellant left his side of the highway and drove his car across the center line into the bus, whether Reece was driving in the first or second lane south of the center line. The jury chose to believe appellees' theory of the case which is supported by evidence that is substantial and sufficient to support the verdicts.

It is next contended that the court erred in denying appellant permission to make a closing argument against the cross-complainant and cross-defendant, Johnston. Appellant insists that he had this right under the 6th subdivision of 3 Ark. Stats. § 27-1727, which provides that the party having the burden of proof shall have the opening and concluding argument. The trial court fixed the order of argument by counsel of the respective parties as follows: Mr. Spears for Reece; Messrs. Hale and Davis for Schwam; Mr. Wrape for Johnson; Mr. Smith for People's Mercantile & Implement Co.; and Mr. Spears for Reece. It will be observed that appellant was not the original plaintiff in either of the suits. In the case filed by Reece, appellant made Johnson a cross-defendant and Johnson cross-complained against appellant so that three parties had the burden of proof to make out their cases, namely: Reece v. Schwam; Johnson v. Schwam; and Schwam v. Reece and Johnson. There was also the suit of People's Mercantile & Implement Co. v. Schwam and Johnson in which the company had the burden of proof. It is obvious that it would have been impossible for the trial court to have permitted each party with the burden of proof to open and close the argument and that the statute relied upon by appellant is not adapted to the complex situation presented in the instant case where there are multiple parties plaintiff ...